U.S. v. Garcia

• Decision Date: 10 March 1976
• Docket Number: No. 75--1822,75--1822
• Citation: 528 F.2d 580
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joe GARCIA, Guillermo Sandoval, and Mario Sandoval, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 580

528 F.2d 580

UNITED STATES of America, Plaintiff-Appellee, v. Joe GARCIA, Guillermo Sandoval, and Mario Sandoval Defendants-Appellants.

No. 75--1822.

United States Court of Appeals Fifth Circuit.

March 10, 1976.

Rehearing and Rehearing En Banc

Denied April 26, 1976.

Manuel Almaguer, Dallas, Tex. (Court-appointed), for Garcia.

John K. Rothpletz, Dallas, Tex. (Court-appointed), for G. Sandoval.

Kenneth E. Labowitz, Charles L. Caperton, Dallas, Tex., for M. Sandoval.

Frank D. McCown, U.S. Atty., Fort Worth, Tex., Judith A. Shepherd, Dallas, Tex., for plaintiff-appellee.

Appeals from the United States District Court for the Northern District of Texas.

Before TUTTLE, THORNBERRY and CLARK, Circuit Judges.

TUTTLE, Circuit Judge:

Appellants in this case, Joe Garcia, Guillermo Sandoval, and Juan Mauro Sandoval (referred to herein as he was in the indictment and at trial as Mario Sandoval) were indicted on June 13, 1974, in the United States District Court for the Northern District of Texas, Dallas Division. The three-count indictment charged in Count 1 that appellants and six other persons engaged in a conspiracy from prior to January 9, 1974 until June 5, 1974 to possess with intent to distribute and to distribute heroin; of the sixteen overt acts alleged in this count, Joe Garcia was named in eight, Guillermo Sandoval in six, and Mario Sandoval in three. Count 2 of the indictment charged appellant Guillermo Sandoval with the distribution of approximately three ounces of heroin to Delphin von Briesen, Jr., a Drug Enforcement Administration (DEA) agent, on or about April 1, 1974. Count 3 alleged that appellant Joe Garcia possessed with intent to distribute approximately 2.2 pounds of heroin on or about June 5, 1974.

Appellants ¹ were tried jointly before a jury and found guilty as charged. Appellant Garcia was sentenced on Counts 1 and 3 of the indictment to concurrent prison terms of 20 years, to be followed by six years of special parole. Appellant Guillermo Sandoval was sentenced on Counts 1 and 2 of the indictment to concurrent prison terms of 15 years, to be followed by six years of special parole. Appellant Mario Sandoval was sentenced on Count 1 to a prison term of 10 years, to be followed by a three-year term of special parole.

The Government's case depended largely, and in the instance of appellant Mario Sandoval entirely, on the testimony of Gonzalo Castillo Marquez. Marquez had for two years been a 'special employee' of the Drug Enforcement Administration. This arrangement was highly informal; Marquez had no written contract of employment, and he was paid an unexpected amount at the termination of each case he prepared, assuming that the DEA had, at that point, funds out of which to pay him. Marquez testified that: 'Every time they do pay me, that it is even a surprise to me(sic).' His supervisor at the DEA testified that between June 29, 1973 and January 2, 1975, the DEA made thirty payments to Marquez, for a total payment of $31,675.75. Marquez had worked on approximately ten cases and testified in all but two. He was not required to submit time cards or vouchers for expenses; he was reimbursed for expenses but the amount was based on his word and on the observations of the DEA agents with whom he worked. The proof admitted at trial showed that Marquez's employment was irregular; that the government did not withhold tax from Marquez's bonus payments; and that Marquez waited until two weeks before trial to file his income tax returns for 1973 and 1974, claiming that until then he believed that his salary was tax-free.

The following recitation of the facts is what was testified to by the informer, marquez: Marquez testified that in early January, 1974, he was approached by Joe Leal, whom he had known for approximately a year and a half. Leal offered to introduce Marquez to various people he knew in Laredo if Marquez could give Leal a ride to Laredo so that he could purchase heroin there. Marquez agreed. Marquez, Leal, and Leal's wife and brother, arrived in Laredo on January 10, 1974; they went to the home of appellant Guillermo Sandoval. Leal asked for heroin, and Sandoval took them to another home where he procured a gram of heroin; they then returned to Sandoval's house where he and the Leals injected the heroin. Leal explained to Sandoval that Marquez wished to purchase heroin, and Sandoval said that it would be no trouble but that they should return in the daytime. Marquez picked Guillermo Sandoval up the next morning and they proceeded to a methadone clinic where Sandoval obtained his medicine. Marquez and Sandoval then went to a house that had been converted into a garage; Sandoval entered and spoke with Mario Sandoval. After about ten minutes, Guillermo Sandoval returned to the car and directed Marquez to drive to another location. There he told Marquez that he and Mario Sandoval had a pound of heroin, but it was across the river. Guillermo Sandoval and Marquez then returned to the garage; Guillermo Sandoval brought Mario Sandoval to the car, and Mario told Marquez that he had eight ounces of heroin, and that 'they' had another pound across the river. Mario Sandoval told Marquez the price would be $650 in Laredo; answering Marquez, he also said it would be $750 if delivered to Dallas. Mario Sandoval, along with another man, then left for samples; when they returned in about 25 minutes, all four men entered the house. Marquez then tested the samples. Guillermo Sandoval told , mario Sandoval that Marquez was also interested in cocaine; Mario said he knew a man in Laredo who could supply it. Guillermo gave Mario some money for heroin for the Leals. Mario and his companion again left, returning in about half an hour.

Mario then introduced Marquez to yet another man, who gave Marquez a sample of cocaine. Mario told Marquez he was waiting for his pound of heroin to come across the river, and that if he wished Marquez could buy it in about four days. Marquez declined to take the eight ounces Mario had with him because one of his companions was an addict. Mario told Marquez to carry out further transactions through Guillermo, and Guillermo gave Marquez his phone number. Guillermo and Marquez then left to pick up the Leals; they all returned to Dallas late that night.

According to Marquez, he had no further personal dealings with Mario Sandoval. As Marquez's testimony continued, he stated that he next spoke to Guillermo Sandoval when Guillermo called him on March 24, 1974, saying he was in Fort Worth delivering heroin and would give some to Marquez. When they met, Guillermo told Marquez that this was the same heroin that Mario was going to deliver to Dallas and that Mario was the connection. On March 30, Guillermo called Marquez and said his connections were ready; Marquez again ascertained that it was 'Mario's stuff.' Guillermo said he also had three ounces to get rid of and Marquez agreed to take it. Guillermo told Marquez to go to Laredo. Marquez next called Guillermo from the Holiday Inn in Laredo and then went by and picked him up; he told Guillermo that he would only buy the pound if it were delivered to Dallas, but asked if he could have the three ounces 'on consignment' in the meantime. Guillermo made a phone call, which he said was to Mario, and then said it would be alright. (Marquez's testimony that this call was to Mario was objected to and stricken.) The two men proceeded to Guillermo's home, where shortly thereafter a 1954 Chevrolet appeared. Guillermo went to the car and conversed with the driver.

Marquez and Guillermo then went back to the Holiday Inn. In Marquez's room, Guillermo showed him a plastic bag containing heroin. They put it in another plastic bag that said 'Holiday Inn;' they then joined Mrs. Sandoval and drove to Dallas, arriving about midnight on April 1, 1974. After leaving Mrs. Sandoval at a motel, Guillermo and Marquez drove to a club where they met DEA agents von Briesen and Hollenshead; they all proceeded to a second club, where Sandoval sold von Briesen three ounces of heroin for $2100, and agreed to make another delivery. The next day Guillermo Sandoval and his wife returned to San Antonio. On April 5, 1974, after a phone call from Sandoval, Marquez flew to Laredo; but when he arrived Guillermo told him that his connection, Mario Sandoval, had a problem and delivery would be delayed until April 11. He asked for a $10,000 advance on a kilo but Marquez refused. On April 8, he again called Marquez and told him all was ready; Marquez drove to Laredo and again to the Holiday Inn. Guillermo told Marquez he still needed the $10,000; when Marquez said he did not have it, Guillermo told Marquez to stay in town a few days, and that if his first connection failed he had another. He also told Marquez to have his people come down with the money. Von Briesen, Hollenshead, and another DEA agent did go to Laredo. On April 11, 1974, Guillermo Sandoval brought appellant Joe Garcia to Marquez's room at the Holiday Inn; Guillermo told Marquez that Garcia had an ounce of heroin. Later, Guillermo alone met with two of the agents and Marquez and told them Mario couldn't come through, but that he had another connection. ² The agents persuaded Guillermo to introduce them to his new connection; that night they met Garcia in a parking lot. Garcia told von Briesen that he was afraid to deal heroin because it was 'too hot,' but he nonetheless offered von Briesen a kilo of cocaine in return for a $5000 advance on the heroin; von Briesen declined. After several meetings between Garcia, Marquez, and, on two occasions, DEA agent Alvarez, on May 27, 1974, Garcia call Marquez and they agreed on a sale in Laredo. On May 29, Marquez and agent Alvarez drove to Laredo, followed by DEA agents von Briesen and Mike Harper. Late that afternoon Garcia and codefendant Vincent Carrerra met Marquez and Alvarez and delivered a sample. Later that evening, Garcia delivered to Alvarez an...